Fraser v. Johnson Flying Service, Inc.

317 P.2d 316, 132 Mont. 607, 1957 Mont. LEXIS 45

• Court: Montana Supreme Court
• Decided: November 7, 1957
• Docket: No. 9855
• Status: Published

Opinion

Per Curiam.

Respondent has filed herein motion to strike a purported bill of exceptions from the record and to dismiss the appeal. The motion to strike the bill of exceptions contends that the bill was never settled in accordance with the provisions of section 93-5505, R.C.M. 1947. Admitting that such is the fact the appellant requests this court to grant him time for the purpose of preparing, serving, settling and filing a bill of exceptions in the district court, to which court appellant would apply for relief under the provisions of section 93-3905, R.C.M. 1947. This court in the case of Hutchinson v. Burton, 126 Mont. 279, 247 Pac. (2d) 987, dealt specifically with this method of procedure and held that section 93-3905 is a general statute which makes no mention of bills of exceptions while section 93-5505 deals with them in particular, and that by reason thereof the provisions of section 93-3905 would not authorize any relief in the situation here prevailing. In accordance therewith the motion to strike the purported bill of exceptions from the record on appeal is well taken and is hereby granted, and the same is ordered stricken.

The motion to dismiss the appeal is directed to the fact that neither the attorneys in the ease nor the clerk of the trial court have certified the transcript on appeal to be correct. Such being the fact the motion to dismiss the appeal herein is hereby granted, and said appeal is hereby dismissed.